Migrants seeking asylum from gangs have a lot to prove

One Guatemalan teen now living in Phoenix has a long road ahead of him as he seeks asylum from gang violence.

B. Gonzalez says that if he is sent back to Guatemala, he could be killed by the same gangs that targeted him in the past. The police, he says, are unwilling or powerless to stop them.(Photo: Michael Chow/The Republic)

Story Highlights

Young migrants seeking asylum have a high standard to meet in immigration courts

Teen from Guatemala says his friend was killed by gang members over a cellphone

In Guatemala, before he fled to the United States seeking asylum, B. Gonzalez just wanted to go to school.

But every morning, trouble waited at the bus stop for the then-17-year-old, who aspires to study medicine. Now, he is waiting to find out if that trouble meets the high legal merits to stay in the U.S., where he has been living with his father since March.

Classes at the technical high school he attended in the city center started at 6:30 a.m. But it took an hour and a half to get there by bus. That meant Gonzalez had to be up by 4 o'clock and out the door by 5.

In the darkness, Gonzalez waited for the bus with other students from his neighborhood in zona 18, one of the most dangerous sectors in Guatemala City, the nation's capital.

Then members of the Mara 18 gang, which controlled his neighborhood, would show up. Usually there were four or five of them.

"They would demand money," recalled Gonzalez, who asked that his full first name not be used. Those who didn't pay got punched or robbed, he said.

The bus fare cost 20 quetzales. Gonzalez always carried an extra 10 quetzales, or about $1.30, and gave it to the gang members "so they wouldn't do anything to me — like hit me or kill me," he said.

Gonzalez is among the growing number of Central Americans now seeking asylum in the U.S. after entering the country illegally.

But asylum cases in general are hard to win, and even harder for those fleeing gang violence, experts say.

To qualify, Gonzalez will have to show not only that he feared for his life at the hands of criminal gangs in Guatemala. He will also have to show that the gangs targeted him because of his race, religion, nationality, political opinion or social group.

Last fiscal year, 2,797 unaccompanied minors filed asylum cases with U.S. Citizenship and Immigration Services. That was up 385 percent from the 577 filed in 2011.

They are part of the unprecedented wave of nearly 70,000 children and teens apprehended by the Border Patrol during the past fiscal year. The majority — 51,705 — were from El Salvador, Honduras and Guatemala.

The three Central American countries are riddled with gang violence. They rank among the five countries with the highest homicide rates in the world.

In Guatemala, where Gonzalez is from, 98 percent of all crimes are not prosecuted, according to Human Rights Watch.

Even so, Gonzalez and others face an uphill battle.

"The legal standards are very high," said Dree Collopy, an immigration lawyer in Washington, D.C. She chairs the asylum committee for the American Immigration Lawyers Association.

"It's not just showing that you were a victim of violence, you have to show you were a victim of very targeted and systematic violence and the reason you were targeted is one of the protected grounds under our law."

B. Gonzalez stands outside his home in Phoenix on Jan. 14, 2015. The 18-year-old from Guatemala is applying for asylum to remain permanently in the U.S.(Photo: Michael Chow/The Republic)

Restrictions tightened

A series of restrictions by the Board of Immigration Appeals, the nation's highest immigration court, have made it even harder in recent years for those fleeing gang violence to gain asylum, Collopy said.

The restrictions, she said, may have been aimed at trying to prevent unaccompanied children coming from Central America and asking for asylum.

The fear was, "if we grant asylum to this boy who resisted gang recruitment, we are going to have to grant asylum to pretty much all of Central American children," she said.

"That's very problematic," Collopy added, "because that is not what asylum is about. Asylum is about protecting people who need to be protected under our legal standards and you can't just change the standards because there are a lot of people who need protection."

Still, there are signs more are winning their cases. Last year, the approval rate for unaccompanied minors seeking asylum was 52.8 percent, up from 38.1 percent in 2011, according to USCIS.

Gonzalez argues that if sent back to Guatemala he could be killed by the same gangs that targeted him in the past. The police, he says, are unwilling or powerless to stop them.

"The police, they don't do anything," Gonzalez said recently as he sat in the Phoenix offices of his lawyer, Monika Sud-Devaraj.

Besides the daily extortion at the bus stop, Gonzalez said that gang members came looking for him at his house last January after he got into an argument with a brother of a gang member.

The gang members punched his mother in the face. They then fired several rounds from a .38-caliber revolver through the front door of his house as Gonzalez, his mother and brother cowered on the floor inside.

For his protection, his mother sent him to live with an uncle. Gonzalez said he didn't leave for 15 days.

"I was afraid to go out," he said.

Gonzalez said he had good reason to be scared.

A few months earlier, Gonzalez said gang members robbed him and a friend on their way home from school. The gang members stole his friend's cellphone. When his friend fought back, the gang members shot him in the head three times, killing him on the sidewalk.

"For one phone, they killed my friend," Gonzalez said.

Gonzalez said a street vendor and other bystanders managed to catch the shooter. The bystanders then attacked the gang member and beat him to death.

The Arizona Republic was unable to independently verify Gonzalez's story, including the murder of his friend.

But experts say such violence by criminal gangs is rampant in Guatemala.

"It is really that bad, no question," said Daniel Rothenberg, executive director of the Center for Law and Global Affairs at Arizona State University's Sandra Day O'Connor College of Law. "Those kinds of facts sound exactly like what happen all the time."

Rothenberg has served as an expert witness in asylum cases. He said gang violence in Guatemala is rooted in many factors, including "extraordinarily" high levels of poverty and inequality, in addition to drug trafficking, police corruption and government dysfunction. Violence also became embedded in the culture in Guatemala during a civil war that killed 200,000 people and lasted 36 years before ending in 1996, he said.

"Those who are responsible for quite heinous acts are very rarely" held accountable, Rothenberg said. "So, the levels of daily insecurity are extraordinary and the inability of the state to provide protection for ordinary citizens is really quite striking."

A federal bus leaves the U.S. Customs and Border Protection facility in Nogales, Ariz., on Monday, June 9, 2014. More than 1,000 children from Latin America are being held at the facility after being transferred from other detention facilities in Texas.(Photo: Charlie Leight/The Republic)

A turning point

At the end of February, Gonzalez says he had had enough. He decided to flee Guatemala and join his father, an undocumented immigrant who has lived in Phoenix for the past 14 years.

His father, who works at a recycling plant, sent him $5,000 to pay a smuggler to help him get to the United States.

In March, Gonzalez was apprehended by the Border Patrol near McAllen, Texas, after traveling by bus from Guatemala, through Mexico to the U.S. border.

He was sent to a shelter for unaccompanied minors in Phoenix and then released to his father after being being placed in deportation proceedings.

Sud-Devaraj, his lawyer, sent his application to U.S. Citizenship and Immigration Services, which handles asylum cases for unaccompanied minors. But since Gonzalez has turned 18, he will now have to file his asylum case with the Immigration Court in Phoenix, Sud-Devaraj said. He has a court date in March.

In his case, Gonzalez is arguing he qualifies for asylum because he was targeted by the gangs for belonging to a particular social group, Sud-Devaraj said.

But that can be one of the most difficult categories of asylum to prove because it's not always clear what constitutes a social group in asylum cases.

Between 1985 and 2006, the Board of Immigration Appeals applied the same standard, said Lisa Frydman, an expert on asylum at the Center for Gender and Refugee Studies at the University of California-Hastings College of Law.

Under the standard, Frydman said, the board defined a social group for asylum cases as people who shared an "immutable" characteristic that couldn't be changed, such as their race or gender, or that they shared a characteristic that was fundamental to their identity, such as sexual orientation.

But a turning point came in 2006 when the board said having an "immutable" characteristic wasn't enough to define social group membership.

The board began to say that people seeking asylum had to show they belonged to a social group that is "visible" in society, in addition to having "immutable" characteristics. The board also said the social group had to have definable boundaries, such as a family.

Those additional restrictions were cemented in watershed cases in 2008, making it that much harder to qualify for asylum based on social group membership.

After 2008, "if you couldn't show the social visibility and the clear definition, you would not win on a social group argument," Frydman said.

The restrictions stemmed from two cases involving youths from Honduras and El Salvador who argued that they qualified for asylum because they were targeted by gangs that tried to recruit them. They argued that by refusing, they belonged to a particular social group.

The board, however, rejected those arguments in denying them asylum. The decisions were widely "misinterpreted" to mean that people fleeing gang violence and gang recruitment don't qualify for asylum based on membership in a particular social group, Frydman said.

Young boys sleep in a holding cell where hundreds of immigrant children, most from Central America, were being processed and held in 2014.(Photo: Ross D. Franklin/AP)

More applying, more winning

For years, the board's 2008 decisions discouraged some fleeing gang violence from applying for asylum because they thought they didn't qualify, she said.

Last February, however, the board issued decisions in two more asylum cases that provided more leeway for people fleeing gang violence.

The board said people applying for asylum needed only to show that the group they belonged to was "socially distinct" and not actually a group that could be seen, such as the military.

The board also made clear that people fleeing gang violence should not be deterred from applying for asylum based on previous decisions by the board.

"They very clearly said 'our previous decisions on individuals fleeing gang violence should not be interpreted essentially as a bar to other people seeking asylum on this basis,' " Frydman said.

What matters is the specific evidence they present in their own case, she said.

Despite the difficulty in receiving asylum, a growing number of people fleeing gang violence have been applying for asylum, and more are winning their cases, including people seeking asylum based on social group, she said.

In some recent cases, Frydman said, immigration judges have granted asylum to people who argued they were targeted by gangs because they were related to gang members or former gang members. Judges also have granted asylum in cases involving people who said they were targeted because they witnessed gang violence, and testified after reporting it to the police.

In addition to social-group grounds, some immigration judges also have granted asylum in cases where people argued that they were expressing a political opinion by resisting gang recruitment, she said.

"It is really important to understand that in addition to cases based on resistance to recruitment, there is a whole range of gang cases that have actually started being granted," she said.

A toddler sits with other detainees at a Customs and Border Protection processing facility on June 18, 2014, in Brownsville, Texas.(Photo: Eric Gay/AP)

'I don't want to go back'

Gonzalez continues living with his father in west Phoenix while his lawyer prepares his upcoming asylum case.

Sud-Devaraj acknowledged that she is having trouble formulating his argument because the legal standard for social group membership is so high.

The obvious argument is that the gangs targeted Gonzalez because he was a student. But as a student it's not clear Gonzalez qualifies for asylum as a member of a particular social group.

On the beat

Daniel González covers immigration and minority communities for The Republic's watchdog team. He also has written about Mexico and the U.S.-Mexico border. He was a finalist for the American Society of News Editors' Award for Distinguished Writing on Diversity in 2014.
How to reach himdaniel.gonzalez@arizonarepublic.com
Phone: 602-444-8312
Twitter: @azdangonzalez

"Being a student may not necessarily be an immutable characteristic, something that you couldn't change," Sud-Devaraj said. "I am not sure that would work because you could change the fact that you were a student. I guess the question would be, 'Would you be expected to change the fact that you were a student?'"

Meanwhile, Gonzalez has resumed his studies here in the United States. He takes English classes at Trevor Browne High School in west Phoenix.

But if he loses his asylum case, Gonzalez could be forced to return to Guatemala and face the gangs.